America could be heading into its worst political crisis since the Civil War.
If, as the polls predict, Joe Biden wins more votes in November but Donald Trump refuses to leave, there is no template for how to guarantee a peaceful transfer of power.
Asked on Wednesday if he would commit to one, the president said, “We’re going to have to see what happens.”
You know that I have been complaining very strongly about the ballots. And the ballots are a disaster. … Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer frankly. There’ll be a continuation.
He also explained why he’s in a rush to fill Ruth Bader Ginsburg’s seat on the Supreme Court:
I think this will end up in the Supreme Court. And I think it’s very important that we have nine justices.
Ginsburg, a liberal justice appointed by Bill Clinton, died a week ago. The Court now has five conservative and three liberal members.
In 2016, Trump told supporters he would only accept the outcome if he won.
When he did win, Trump claimed — without evidence — that three million people had voted illegally for Hillary Clinton, the very margin by which she won the popular vote. Trump prevailed in the Electoral College.
If Trump loses this year and refuses to concede, that alone could throw the period between the election on November 3 and the inauguration on January 20 into chaos.
But there’s more Trump and his party could do to stay in power.
Depress Democratic turnout
The first step is trying to get fewer Democrats to vote.
Voter fraud is extremely rare, but Republicans have used it as an excuse to ban ballot drop boxes, discard mailed-in ballots with minor flaws, require photo ID and regularly purge voter rolls.
Voter ID laws are common in democracies, but, unlike most other democracies, the United States does not have a national ID requirement. Millions of Americans don’t have photo ID. It is not a coincidence that they tend to be low-income and are more likely to vote Democratic.
The need to proactively register to vote is an American peculiarity. Most other democracies automatically register all eligible voters.
Voters can also be removed, or “purged”, from electoral rolls in the United States. Republicans in Georgia wrongfully purged the registration of as many as 200,000 voters in 2018. Many were black, another constituency that tends to vote Democratic. This almost certainly made the difference in the gubernatorial election, where incumbent Secretary of State Brian Kemp beat his Democratic challenger, Stacey Abrams, by around 55,000 votes.
If likely Democratic voters do have photo ID, and are registered, Republicans may try to chase them away from the polls.
Barton Gellman reports for The Atlantic that this year’s presidential election will be the first in forty years in which Republicans don’t need approval from a judge to carry out so-called “ballot security” operations.
In 2018, a federal judge allowed a consent decree to expire, arguing there was no proof Republicans had tried to intimidate voters recently.
They did in 1981, when Republicans in New Jersey hired off-duty cops to form a “National Ballot Security Task Force”. Carrying guns at polling places, their mere presence was meant to intimidate African Americans, who are still three-and-a-half times more likely to be shot and skilled by police than white Americans.
It worked: the Democratic candidate that year, James Florio, lost the election to Republican Thomas Kean by under 2,000 votes.
Democrats sued, and won. Republican Party organizations nationwide were required to seek judicial consent before attempting any more “ballot security” operations.
Now that decree has expired and Republicans are recruiting 50,000 volunteers in fifteen swing states to monitor polling places and challenge voters they deem suspicious.
Trump told Fox News in August: “We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, US attorneys” to keep an eye on voters.
Throw out postal ballots
Due to the COVID-19 pandemic, a record number of Americans are expected to vote by mail this year.
Trump has disparaged postal voting, claiming — without evidence — that it is more prone to fraud, even though he himself voted by mail in the 2018 election. (Trump is a resident of Florida.)
No matter. Americans who support Trump are now far less likely to vote by mail, which was the point.
Rather than increase funding for the Postal Service, to help it cope with the higher volume of postal ballots, Trump has cut funding — and admitted in an interview with CNBC that his goal was to influence the outcome of the election:
If we don’t make a deal, that means they don’t get the money. That means they can’t have universal mail-in voting. They just can’t have it.
Trump’s postmaster general, Louis DeJoy — who donated more than $2 million to Republican causes before he was appointed — has decommissioned one in ten mail-sorting machines, cut business hours and barred postal workers from working overtime.
The changes are already having an effect. In Pennsylvania, a swing state, neighborhoods in the region around Philadelphia — which happen to vote more Democratic than Republican — are experiencing significant delays. The Philadelphia Inquirer reports that some residents are “going upwards of three weeks without packages and letters, leaving them without medication, paychecks and bills.”
Most states require ballots to be mailed in by election day in order to be counted. If the mail is delayed by several days, valid ballots could be thrown away.
Trump’s hope is to be ahead in the in-person vote count on election night, declare himself the winner and then disregard mailed-in ballots counted days later, which could put Biden ahead.
He tweeted in July:
Must know election results on the night of the election, not days, months or even years later!
And he told supporters in Fayetteville, North Carolina this weekend that he’s “counting on the federal court system” to make it happen.
Gellman reports that both parties are bracing for a torrent of emergency motions in state and federal courts.
Mailed-in ballots will have plenty of flaws for Trump’s lawyers to seize upon. Voters might have written a different version of their name (“Nick” instead of “Nicky”). Their signature might have changed compared to the one authorities have on file. Ballots that aren’t sealed inside a second, secure envelope aren’t allowed to be counted.
The point isn’t simply to get votes for Biden thrown out; it’s to draw out the process until early December, when states must appoint their members of the Electoral College.
Appoint alternative electors
December 8 is the so-called “safe harbor” deadline for appointing the 538 men and women who will formally elect the president of the United States. They don’t meet until six days later, on December 14, but Congress must accept their credentials before they do, hence the earlier deadline.
Electors are currently elected by voters, but the Constitution leaves it up to each state to name its electors “in such Manner as the Legislature thereof may direct.”
The Supreme Court, in the contentious 2000 election, affirmed that the states have the right to “take back the power to appoint electors” at any time.
What if, by December 8, a number of Republican-controlled swing states, like Arizona and Florida, still don’t have an official result, because Democratic and Republican lawyers are still arguing about postal ballots in the courts? Their Republican governors and state legislatures could decide to appoint electors themselves to avoid missing the “safe harbor” deadline.
Those electors, of course, would be pro-Trump.
Gellman reports that’s exactly what the Trump campaign is discussing with Republican state officials.
There are four swing states where Republicans control the legislature but the governor is Democratic: Michigan, North Carolina, Pennsylvania and Wisconsin. Governors need to certify the official vote count. This is normally a routine exercise, but what if Republican lawmakers in those states name electors for Trump and the governors certify the popular vote count instead, which has Biden ahead? There could be eight sets of electors from four states. Congress would need to decide which to accept.
Fight it out in Congress
The new Congress will be sworn in on January 6. Control of the Senate would be crucial to deciding the outcome of the presidential election.
The vice president, as president of the Senate, is required by the Constitution to “open all the certificates” of the electors — “and the votes shall then be counted.”
That’s it. There is no stipulation for how to deal with dual sets of certificates, or how to count the votes.
If Republicans retain their majority in the Senate, Mike Pence, who would still be vice president until January 20, could accept the certificates of Trump’s electors, but not Biden’s. If Democrats are in the majority, they could challenge him — but could they overrule him?
The Constitution does require the electoral votes to be counted “in the presence of” both the House of Representatives and the Senate. What if Nancy Pelosi and her members walked out? If there is still no consensus on January 20, she, as House speaker, could become acting president.
Republicans could argue the Constitution doesn’t require the presence of the full House and Senate and proceed to inaugurate Trump. Three people — Biden, Pelosi, Trump — could then have legitimate claims to the presidency.
The decision would likely end up with the Supreme Court — just as Trump predicted in the beginning.
Assuming at that point Americans would still accept the ruling of an institution whose legitimacy has been thoroughly discredited.